1
Exhibit 10.19
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release (this
"Agreement") is made and entered into this third day of December, 1999, by
and between Xxxxxx X. Xxxxx ("Xxxxx"), a resident of the State of Iowa, and
Stockpoint, Inc., a Delaware corporation (the "Company").
WHEREAS, Xxxxx was employed as Chief Executive Officer of
the Company until December 3, 1998 when he took a leave of absence, and
formally resigned his positions as an officer, director and employee of the
Company effective April 12, 1999;
WHEREAS, Xxxxx claims entitlement to certain back pay,
vacation and severance benefits in connection with his employment
("Employment Related Compensation") as well as reimbursements for
expenditures on behalf of the Company ("Reimbursements");
WHEREAS, at various times beginning in November 1994,
Xxxxx guaranteed certain bank lines and other debt obligations (the
"Loans") of the Company and was obligated to collateralize those guarantees
with certain marketable securities (the "Pledged Securities")
WHEREAS, in consideration of the guarantees and
collateralization by Xxxxx of the Loans, the Company issued to Xxxxx
warrants to purchase an aggregate of 500,000 shares of the Company's common
stock (the "Common Stock") at a price of $8.00 per share (the "$8.00
Warrants"), warrants to purchase an aggregate of 806,250 shares of the
Common Stock at a price of $4.00 per share (the "$4.00 Warrants" and
together with the $8.00 Warrants, the "Warrants"), and paid Xxxxx guarantee
fees (the "Guarantee Fees");
WHEREAS, the Company now asserts that it has actionable
claims against Xxxxx with respect to Pledged Securities and has alleged
that (a) the Pledged Securities did not in fact exist, and the Loans and
the Warrants were therefore falsely induced, (b) the Warrants are void for
lack of consideration, (c) the Company has been damaged by Xxxxx'x actions
by being unable to obtain additional funds under its Loans necessary to
fund its operations and by being forced to incur significant expense to
resolve disputes with its lenders and with Xxxxx, and (d) the Company's
reputation in its community has been damaged by Xxxxx'x actions;
WHEREAS, the Company further alleges that it has no
obligation to honor any of the Warrants, that it is entitled to refund of
the Guarantee Fees, that it has fully paid and has no further obligation to
pay any further Employment Related Compensation to Xxxxx, that it has paid
all Reimbursements and does not have proper documentation for further
Reimbursements and that it has no obligation to pay any sums to entities
now, or previously controlled by Xxxxx;
WHEREAS, Xxxxx denies the Company's allegations and
claims that the Company is obligated to pay the Employment Related
Compensation and the Reimbursements, to honor the Warrants, and to issue to
Xxxxx $8.00 Warrants to purchase an additional 200,000 shares of Common
Stock;
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WHEREAS, Xxxxx holds 246,000 shares of the Common Stock
and 1600 shares of the Company's Series B Preferred Stock (collectively,
the "Xxxxx Shares");
WHEREAS, Xxxxx and the Company desire to settle all
disputes related to the Loans, the Warrants, Reimbursements and to
determine the voting rights and disposition of the Xxxxx Shares and shares
issuable upon exercise of the $4.00 Warrants and the $8.00 Warrants in
accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual covenants and agreements set forth in this
Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Resignation of Xxxxx. Xxxxx agrees and acknowledges
that he voluntarily terminated all services as an employee, officer and
director of the Company effective as of the date of his leave of absence
(December 3, 1998), confirmed such resignation on April 12, 1999, and does
not serve in any capacity as an officer, director or employee of the
Company and has not served in any such capacity since December 3, 1998.
2. Surrender and Cancellation of Warrants. Xxxxx and the
Company hereby agree that, effective upon execution of this Agreement, (i)
all $8.00 Warrants, and (ii) $4.00 Warrants to purchase 306,250 shares of
Common Stock shall be and hereby are cancelled and shall be considered null
and void. In accordance therewith, Xxxxx hereby agrees to surrender, and is
delivering and surrendering to the Company with this Agreement:
(a) Xxxxx'x $8.00 Warrant to purchase 500,000 shares of
Common Stock as evidenced by that certain Warrant Agreement dated
as of April 13, 1998;
(b) Xxxxx'x $4.00 Warrant to purchase 93,750 shares of
Common Stock as evidenced by that certain Warrant to Purchase
Common Stock of Neural Applications Corporation dated November 15,
1994;
(c) Xxxxx'x $4.00 Warrant to purchase 78,125 shares of
Common Stock as evidenced by that certain Warrant to Purchase
Common Stock of Neural Applications Corporation dated May 16,
1995;
(d) Xxxxx'x $4.00 Warrant to purchase 46,875 shares of
Common Stock as evidenced by that certain Warrant to Purchase
Common Stock of Neural Applications Corporation dated June 26,
1995; and
(e) Xxxxx'x $4.00 Warrant to purchase 400,000 shares of
the Company's Common Stock as evidenced by that certain Warrant To
Purchase 400,000 Shares of Common Stock of Neural Applications
Corporation dated February 27, 1996 (the "Warrant Agreement");
provided, however, that the Company shall issue to Xxxxx a new
warrant (the "Replacement Warrant") to purchase 312,500 shares of
the Company's
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Common Stock at a purchase price of $4.00 per share having the
same terms as the Warrant Agreement and representing the portion
of the Warrant Agreement not cancelled in accordance with the
foregoing.
Xxxxx further agrees and represents that all other rights of Xxxxx
to receive warrants to purchase shares of the Common Stock, whether current
or prospective, in connection with Xxxxx'x personal guarantee of, or pledge
of assets as security for, or both, the obligations of the Company,
including, without limitation, any further right to receive $8.00 Warrants
to purchase 200,000 Shares, are hereby surrendered and cancelled. Xxxxx
hereby represents and acknowledges that, after the transactions set forth
in this Section 2, Xxxxx shall hold, subject to the terms of the Voting
Trust Agreement described in Section 5 (a) $4.00 Warrants to purchase an
aggregate of 500,000 shares of Common consisting solely of the Replacement
Warrant and that certain Warrant to Purchase Common Stock of Neural
Applications Corporation dated June 1, 1996 Stock (collectively, the
"Remaining Warrants") representing the right to purchase 187,500 shares of
Common Stock, and (b) the Xxxxx Shares (the Xxxxx Shares and such Remaining
Warrants being hereafter referred to as the "Remaining Equity Rights"), and
hereby further represents and agrees that he shall not hold, or have the
right to purchase, acquire or receive, any shares of Common Stock or equity
interest in the Company other than the Remaining Equity Rights. Xxxxx
hereby agrees to indemnify and hold harmless the Company from and against
any claim from Xxxxx, the trust (the "Trust") created by that certain
voting trust agreement of even date herewith in accordance with the Voting
Trust Agreement described in Section 5, or any direct or indirect
transferee or assignee of Xxxxx, that relates to the ownership,
beneficially or of record, of any equity securities or rights to acquire
equity securities of the Company other than the Remaining Equity Rights.
3. Release of claim to Employment Related Compensation
and Reimbursements. Xxxxx agrees that he is not now, and has never been,
entitled to any further Employment Related Compensation, including, without
limitation, any unpaid salary, bonuses, wages, vacation pay, disability
pay, severance pay, or other compensation of any kind. Xxxxx hereby agrees
that the Company shall be, and hereby is, released and discharged from any
further obligation, liability or claim related to the Employment Related
Compensation.
4. Consideration. In consideration of the foregoing, the
Company agrees not to contest the validity, enforceability or ownership of
the Remaining Equity Rights and acknowledges, reaffirms and otherwise
agrees to honor all rights represented by the Remaining Equity Rights,
including the Remaining Warrants. The Company further agrees to pay to
Xxxxx a total of $60,000 upon the earlier of June 30, 2001 or receipt of
the net proceeds from an initial public offering of the Company's stock (by
check delivered to Xxxxx within 10 days of receipt of such net proceeds).
5. Voting Trust. Xxxxx hereby agrees to execute a Voting
Trust Agreement in substantially the form of Exhibit A attached hereto and
to transfer to the trustee of such Voting Trust all of the Xxxxx Shares,
and any shares ("Warrant Shares") issuable upon exercise of the Remaining
Warrants (so long as such Remaining Warrants are held, directly or
indirectly, by Xxxxx). Concurrent with execution of this Agreement, Xxxxx
agrees to deliver stock certificates
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evidencing the Xxxxx Shares to the trustee and further agrees that stock
certificates evidencing shares issued upon the exercise of the Remaining
Warrants shall be issued in the name of the Voting Trustee.
6. Hold Harmless Agreements. Xxxxx and the Company hereby
agree that the Company's obligation under that certain Indemnification and
Hold Harmless Agreement dated February 27, 1996 as amended by that certain
Amendment to Indemnification and Hold Harmless Agreement dated August 1,
1997 (as so amended, the "Hold Harmless Agreement") and that certain
Reimbursement and Subordination Agreement dated August 1, 1997 (the
"Reimbursement Agreement") to indemnify Xxxxx, hold Xxxxx harmless and
reimburse Xxxxx for amounts that Xxxxx is required to pay The Northern
Trust Bank shall apply only if and to the extent that the Company is in
default of the Company's obligations to pay principal and interest when due
to The Northern Trust Bank and shall not, in any event, include indemnity
or reimbursement of amounts arising out of breach of Xxxxx'x contractual
obligation to pledge collateral to secure such obligations. Xxxxx agrees
that, in the event he is obligated to pay any amounts to The Northern Trust
Bank and, by virtue of such payment, is subrogated to the rights of The
Northern Trust Bank, he will not be entitled to any reimbursement from the
Company except to the extent that his subrogated interest would have been
payable under the terms of the debt obligations with The Northern Trust
Bank.
7. Transfer of Remaining Equity Rights. The Company and Xxxxx
acknowledge that the Company intends to make a public offering of certain
Company stock (the "Potential Public Offering"). Xxxxx and the Company agree
that such Potential Public Offering is in the mutual interest of both parties.
In order to facilitate the Potential Public Offering and as further
consideration for the settlement agreements set forth herein, Xxxxx and the
Company have agreed that, during the term of this Agreement, Xxxxx shall not
sell, offer to sell, hypothecate, pledge, dispose of or otherwise transfer the
Remaining Equity except as provided in this Section 7. The Company and Xxxxx
acknowledge that voting trust certificates will be issued to Xxxxx upon transfer
of the Xxxxx Shares and any Warrant Shares to the Voting Trust ("Voting Trust
Certificates") and agree that such "Voting Trust Certificates shall be deemed to
be "Remaining Equity Rights" for purposes of this Section 7.
(a) Potential Public Offering. Xxxxx and the Company
acknowledge that Xxxxx contemplates the sale of the Xxxxx Shares
to one or more underwriters (the "Underwriters") in the Potential
Public Offering, which Underwriters would offer and sell the Xxxxx
Shares to the public. Xxxxx and the Company further understand
that it is contemplated that all or part of the Warrants will be
exercised by Xxxxx and the resulting Warrant Shares sold to the
Underwriters, who would offer and sell such Warrant Shares to the
Public. Xxxxx agrees to negotiate and sign such reasonable and
customary agreements as are necessary to facilitate such a sale on
the same terms as shares are sold by the Company in such Potential
Public Offering. Xxxxx and the Company agree that the Shares and
the Warrants may be delivered to a custodian for delivery and
transfer to the Underwriters upon completion of such Potential
Public Offering. In any event, Xxxxx'x agreement to negotiate the
sale of a portion of his Remaining Equity Rights under this
Subsection 7(a) shall only extend to the Xxxxx Shares plus
Warrants for 200,000 shares of
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the Company's common stock and any additional Warrant Shares
necessary, if at all, to bring the total consideration realized
from such sale by Xxxxx to at least $6,000,000. Nothing in this
Section 7 shall create an obligation on behalf of the Company or
any Underwriter to include any Xxxxx Shares or Warrant Shares in a
Potential Public Offering.
(b) Transfer to a Permitted Third Party. Xxxxx shall have
the right to transfer all or any part of the Remaining Equity
Rights to a Permitted Third Party upon the Company's prior written
consent, which consent shall not be unreasonably withheld.
Withholding of the Company's consent shall not be deemed
unreasonable if any Underwriter(s) has indicated in writing that
such Underwriter intends in good faith to enter negotiations with
Xxxxx in a manner consistent with Subsection 7(a) and otherwise
objects in writing to the transfer proposed by Xxxxx. For purposes
of this Section 7(b), the term "Permitted Third Party" means:
(1) "Permitted Third Party" means any Person
that is not (a) related to Xxxxx by blood or by marriage,
(b) a Person owned or controlled by Xxxxx, (c) an
Affiliate of any Person related to Xxxxx by blood or by
marriage or owned or controlled by Xxxxx or (d) a
creditor of Xxxxx.
(2) "Person" means any individual, partnership,
joint venture, corporation, limited liability company,
trust, unincorporated organization or any other entity.
(3) "Affiliate" means any Person directly or
indirectly controlling, controlled by or under direct or
indirect common control with such other Person, through
the ownership of all or part of any Person; for purposes
of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under direct or
indirect common control with") means the possession,
direct or indirect, of the power to (A) vote 50% or more
of the voting securities of such Person or (B) direct or
cause the direction of the management and policies of
such Person, whether by contract or otherwise.
(c) Transfer to Creditors. Xxxxx shall have the right,
without the prior written consent of the Company, to (i) pledge
any Voting Trust Certificate or unexercised Warrant to one or more
creditor(s) of Xxxxx or (ii) transfer any Voting Trust Certificate
or unexercised Warrant to a trust created to benefit all or part
of Xxxxx'x creditor's.
(d) Notification. Notwithstanding any other provision of
this Section 7, no transfer shall be made under this Section 7
unless Xxxxx complies with the provisions of this subsection 7(d)
and Section 17 hereunder and the transferee of any Voting Trust
Certificate or Warrant (or any trustee of any trust established in
accordance with 7(c)) agrees to be bound by the Voting Trust
Agreement (to the extent applicable thereto) and the provisions of
Section 5, Section 7(a) and Section 7(e) of this Agreement, and
provided further that such transfer is in compliance with federal
and applicable state securities laws. Written notice of any
transfers pursuant to this Section 7 shall be delivered to the
Company, to the trustee of the Trust and to the other parties
identified in
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Section 17 hereof prior to the date of transfer. Xxxxx shall
provide the Company with all information reasonably requested by
it to confirm that this Subsection 7(d) has been satisfied. The
Company shall not unreasonably withhold the written consent
required by the Voting Trust Agreement to any such transfer.
(e) Lockup. In connection with any Potential Public
Offering, and except for transfers in accordance with Section 7(a)
and 7(c), Xxxxx agrees that he will not, without the prior written
consent of the representative (the "Representative") of the
Underwriters, sell, offer to sell, contract to sell, hypothecate,
pledge, grant any option to sell or otherwise dispose of, or file
(or participate in the filing of) a registration statement with
the Securities and Exchange Commission (the "Commission") in
respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
promulgated thereunder with respect to, any shares of capital
stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock or any voting
trust certificate representing beneficial or pecuniary interest in
the same, including the Remaining Equity Rights, or publicly
announce an intention to effect any such transaction, for a period
of at least 180 days, and at the reasonable request of the
Representative up to 365 days, after the date of execution of the
underwriting agreement related to the Potential Public Offering.
Xxxxx agrees that the Representative shall be a third party
beneficiary of this provision.
(f) Subject to Section 17, the provisions of this Section
7 shall survive termination of this Agreement and until June 30,
2002.
8. Proprietary Information. Xxxxx acknowledges that
during his employment with the Company, he was exposed to and acquired
confidential, proprietary and trade secret information belonging to the
Company and the Company's customers ("Confidential Information"),
including, without limitation, designs, processes, formulae, plans, devices
and material, directly or indirectly, useful in any aspect of the Company's
business, past, current or anticipated products or services, customer and
supplier lists, development and research work, business strategies, plans
and proposals, financial, employee and personnel data and information and
purchasing, accounting, marketing, selling and services information. Xxxxx
understands and agrees that such Confidential Information was disclosed to
him in confidence and for the sole benefit of the Company. Xxxxx agrees
that beginning on the date of this Agreement he and any entity directly or
indirectly controlled by Xxxxx will (i) diligently protect the
confidentiality of all Confidential Information; (ii) not disclose or
communicate any Confidential Information to any third party without the
consent of the Company; and (iii) not make use of Confidential Information
on his own behalf or on behalf of any third party. Xxxxx agrees that any
unauthorized disclosure or use of such Confidential Information to or on
behalf of third parties would cause irreparable harm to the confidential
status of such information and to the Company, and, therefore, the Company
shall be entitled to an injunction prohibiting any such disclosure, use, or
threatened disclosure or use. The foregoing obligations of confidentiality
shall not apply to any
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knowledge or information that is now or subsequently becomes generally
publicly known, other than as a direct or indirect result of a breach of this
Agreement by Xxxxx.
9. Full Compromise and General Release.
(a) Xxxxx agrees that the payment and acceptance of the
consideration described in Sections 2, 3 and 4 hereof is in full,
final, and complete compromise, settlement, and satisfaction of
any and all claims relating directly or indirectly to (i) Xxxxx'x
employment with the Company, (ii) Xxxxx'x resignation from
employment with the Company, (iii) Xxxxx'x personal guarantee of,
and pledge of personal assets as collateral for, any Loans, and
(iv) any other claims of any nature whatsoever that Xxxxx could
have asserted against the Company or any of the "Released Parties"
as that term is defined in Section 9(b) arising prior to the date
of this Agreement; provided that nothing contained in this
Agreement shall relieve the Company of its obligations under the
Hold Harmless Agreements as amended by Section 6 of this
Agreement.
(b) Xxxxx, for and on behalf of himself and his heirs,
administrators, executors, successors and assigns, agrees to, and
hereby does, release, acquit, and forever discharge the Company
and its affiliates, subsidiaries, and related companies, and the
current and former directors, officers, members, agents,
attorneys, servants, independent contractors and employees of the
Company and all of its related entities (the "Released Parties"),
from any and all claims, whether direct or indirect, fixed or
contingent, known or unknown, which Xxxxx ever had, has, or may
claim to have, for, upon, or by reason of any matter, act or thing
prior to the date of this Agreement, including, but not limited
to, any cause of action Xxxxx could have asserted in any
litigation against any of the Released Parties, any cause of
action or claim relating to Xxxxx'x association with or employment
by the Company, and/or any cause of action or claim relating to
Xxxxx'x decision to resign; provided that nothing contained in
this Agreement shall relieve the Company of its obligations under
the Hold Harmless Agreements as amended by Section 6 of this
Agreement. The General Release of this Section 9 specifically
encompasses, but is not limited to, claims that could be brought
under Chapter 91A Code of Iowa (1999); Title VII of the Civil
Rights Act, 42 U.S.C. ss. 2000e, et seq., as amended by the Civil
Rights Act of 1991; the Age Discrimination in Employment Act, 29
U.S.C. ss. 621 et seq. (the "Age Discrimination in Employment
Act"); the Americans With Disabilities Act, 42 U.S.C. xx.xx.
12101-12213; the Employee Retirement Income Security Act (ERISA),
29 U.S.C. ss. 1001, et seq.; the Fair Labor Standards Act, 29
U.S.C. ss. 201, et seq.; the National Labor Relations Act, 29
U.S.C. ss. 151, et seq.; the Worker Adjustment Retraining and
Notification Act, 29 U.S.C. ss. 2101, et seq.; and any other
federal or state statute, or local ordinance, including any
attorneys' fees, liquidated damages, punitive damages, costs or
disbursements that could be awarded in connection with these or
any other statutory claims. The release contained in this Section
9(b) also specifically encompasses any and all claims grounded in
contract or tort theories, including, but not limited to, breach
of contract; tortious interference with contractual relations;
promissory estoppel; breach of the implied covenant of good faith
and fair dealing; breach of employee handbooks, manuals or other
policies; wrongful discharge; wrongful discharge
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in violation of public policy; assault; battery; fraud; false
imprisonment; invasion of privacy; intentional or negligent
misrepresentation; defamation, including libel and slander,
discharge defamation and self-defamation; intentional or negligent
infliction of emotional distress; negligence; breach of fiduciary
duty; negligent hiring, retention or supervision; whistleblower
claims; and/or any other contract or tort theory based on either
intentional or negligent conduct of any kind, including any
attorneys' fees, liquidated damages, punitive damages, costs or
disbursements that could be awarded in connection with these or
any other common law claims.
(c) The Company, for and on behalf of itself and its
successors and assigns, agrees to, and hereby does, release,
acquit, and forever discharge Xxxxx, from any and all claims,
whether direct or indirect, fixed or contingent, known or unknown,
which the Company ever had, has, or may claim to have by reason of
the issuance of the Warrants, the failure of the collateral
relating to the Loans, the Guarantee Fees, any damages relating to
its inability to obtain capital under the Loans or incurred in
negotiating amendment of the documentation relating to the Loans
or this Agreement, including attorney's fees and expenses and fees
incurred or assessed by the Company's lenders either before or
after the date of this Agreement; provided that nothing contained
in this Agreement shall relieve the Xxxxx of his obligations to
the Creditors to guarantee and provide collateral with respect to
the Loans and nothing in this Agreement shall be deemed to be a
surrender of any defense available to the Company with respect to
any obligation under the Hold Harmless Agreement or the
Reimbursement Agreement.
10. Right to Consider and Rescind.
(a) Right to Consider under the Age Discrimination in
Employment Act. Xxxxx understands that he has twenty-one (21) days
to consider whether he should agree to release his claims, if any,
under the Age Discrimination in Employment Act. Xxxxx further
understands, however, that he is not required to take the entire
21-day period to decide whether he wishes to release his claims,
if any, under the Age Discrimination in Employment Act, and that
he may do so on an accelerated basis without prejudice to his own
or the Company's rights under this Agreement.
(b) Right to Rescind or Revoke under the Age
Discrimination in Employment Act. Xxxxx understands that he has
the right to rescind the release of his claims, if any, under the
Age Discrimination in Employment Act, for any reason, within seven
(7) days after he signs this Agreement. Xxxxx understands that the
release of his claims, if any, under the Age Discrimination in
Employment Act, will not become effective or enforceable unless
and until he executes this Agreement and the applicable rescission
period has expired. Xxxxx understands that if he wishes to
rescind, the rescission must be in writing and must be
hand-delivered or mailed to the Company. To be effective, such
written notice must be delivered either by hand or by mail, to
Xxxxxxx XxXxxxx, Stockpoint, Inc., Oakdale Research Park, 0000
Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000-0000 (phone number:
319-626-5000), within the 7-day period. If a notice of rescission
is delivered by mail, it must be: (i) postmarked within the 7-day
period,
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(ii) properly addressed to Xxxxxxx XxXxxxx at the above address
and (iii) sent by certified mail, return receipt requested.
Xxxxx understands that even if he elects to rescind his
agreement to release his claims, if any, under the Age
Discrimination in Employment Act, this rescission shall have no
effect or consequence whatsoever on the release of any other
claims Xxxxx released pursuant to this Agreement, as set forth
above. Xxxxx further understands that, in the event Xxxxx rescinds
his agreement to release his claims, if any, under the Age
Discrimination in Employment Act, the Company shall have no
further obligation to pay any consideration under section 4 of
this Agreement.
11. Confidentiality. The Company, and Xxxxx, for himself
and on behalf of any entity that he controls, agree that it is the intent
of the parties to maintain the complete confidentiality of the terms of
this Agreement and the negotiations leading to this Agreement. Therefore,
the parties agree that they will not publicize, and will take all prudent
steps to ensure the confidentiality of, this Agreement. Notwithstanding the
terms of this Section 11, the parties shall be entitled to disclose the
terms of this Agreement to their respective lawyers, tax advisors,
accountants, immediate family, creditors, and as otherwise provided in
Section 17 or in connection with any legal or administrative proceeding of
any kind whatsoever if required by law or on the condition that those to
whom such disclosure is made also will be bound by the terms of this
Section 11, and the Company shall be entitled to disclose the terms of this
Agreement, or to file this Agreement, if required under applicable
securities laws in connection with the Potential Public Offering and to
disclose the terms of this Agreement to the Representative and the
underwriters of the Potential Public Offering as part of their due
diligence investigation. Nothing in this Section 11 shall prevent either
party from disclosing to anyone the warrants held by Xxxxx upon execution
of this agreement and the terms related to such warrants under the
applicable warrant agreement, provided that any other information covered
by this Section 11, including the terms and conditions of this agreement
remain confidential.
12. Complete Agreement. This Agreement contains the
entire agreement between the parties with respect to the subject matter
contained herein. Xxxxx hereby affirms that his rights to compensation
and/or benefits from the Company are specified exclusively and completely
in this Agreement. Any modification of, or addition to, this Agreement must
be in writing signed by Xxxxx and by an authorized representative of the
Company.
13. Severability. Xxxxx and the Company agree that should
any provision of this Agreement be held invalid or illegal, such illegality
shall not invalidate the whole of this Agreement, but rather, the Agreement
shall be construed as if it did not contain the illegal part, and the
rights and obligations of the parties shall be construed accordingly.
14. Effect on Successors. This Agreement is personal to
the parties and may not be assigned by Xxxxx without the written agreement
of the Company. This Agreement shall be binding on the Company, its
successors and assigns.
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15. Governing Law. This Agreement shall be governed by,
and interpreted in accordance with, the laws of the State of Iowa.
16. Knowing and Voluntary Agreement. Xxxxx agrees that he
has entered into this Agreement knowingly and voluntarily. Xxxxx further
acknowledges that he has had the opportunity to be represented by counsel
in connection with the negotiation and preparation of this Agreement and
have any terms of this Agreement explained to him. Xxxxx also acknowledges
that the Company has recommended that he consult legal counsel to assist
him in understanding all terms of this Agreement before executing this
Agreement. Xxxxx further affirms that he understands the meaning of the
terms of this Agreement and their effect and agrees that the provisions set
forth in the Agreement are written in language understandable to Xxxxx.
17. Notice to Certain Parties. The Company acknowledges
that Xxxxx is obligated to provide notice to the United States Bankruptcy
Court for the Iowa District (the "Court") pursuant to bankruptcy proceeding
98-5481, the office of the United States Attorney for the Northern District
of Iowa located in Cedar Rapids, Iowa and to Guarantee Bank & Trust of the
surrender of Warrants and claims in this Agreement. Xxxxx agrees to provide
notice of this Agreement immediately and to promptly provide any other
notice that is subsequently required to be given under this Agreement. In
the event that the Court objects to the terms of this Agreement or any
actions taken pursuant to this Agreement, this Agreement shall be null and
void ab initio and of no further force or effect on the parties but only to
the extent provided in Section 13; provided, however, that no objection of
the Court with respect to the execution of this Agreement shall be binding
on the parties if Xxxxx fails within five business days of the date of this
Agreement to provide such notice.
18. Counterparts. This Agreement may be executed in
counterparts (including by facsimile signature), each of which shall be
deemed an original for all purposes and all of which shall be deemed,
collectively, one agreement, but in making proof hereof it shall not be
necessary to exhibit more than one such counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement by
their signatures below.
Dated: December ____, 1999
_______________________________________
Xxxxxx Xxxxx
STOCKPOINT, INC.
By ___________________________________
Its __________________________________
